1. The letter notes the 24 hour time frame for reporting.  This is an undue burden on providers and creates needless citations.  The reporting requirement at 48 or 72 hours provides the following benefits:
   1. Allows for a full discussion/narrative without having to go back into CHRIS or have someone from IMU call to gain clarification
   2. Allows providers to focus on youth, program, staff, and ensuring safety without having to worry about getting a report in on time
   3. IMU division is a monitoring division only.  It does not provide support or services to aid providers.  The need for 24 hour reporting to such a division provides not benefit to youth or anyone in a program setting.
   4. IMU staff are not present on weekends or holidays—what is the reason for using such reporting when the IMU staff are not even reviewing any documentation until they return to office
   5. Providers, for the most part, are aware of their reporting requirements and are trying to balance staffing, safety, and reporting.  Allow providers the opportunity to prioritize safety before paperwork

2. The letter notes staff names need to be entered into the CHRIS system.  On its face, this seems like a punitive measure that could be utilized by any agency against staff.  Various staff at IMU have noted the staff names are not used anywhere—so why do they need to be entered into the system?  I am aware of the departments memo outlining the reasons the department has given for their authority to require a staff name.   An alternative view is that this policy is a violation of staff’s basic rights.
   6. Increasingly law enforcement and CPS are asking for the results of investigations done by providers when these entities are involved in a case.  What stops these entities from requesting information from the CHRIS system regarding other “founded’ human rights issues?   Is this not an issue that could impact a staff person’s rights?
   7. The staff at IMU consistently note that staff names are not used in any way.  Then why are providers required to enter this?  Again this seems unfair to the staff person who now has their name in a statewide system.

3. This phrase “Three or more incidents of peer-on-peer aggression involving the same peers within seven-day timeframe.”
   8. Does this mean all the same peers?  What if one of the peers involved in one incident was involved in another but not anyone else?  How is this measured?  All the same peers?

4. This phrase, “Incidents of peer-on-peer aggression that are determined to be reportable after a review by the provider shall be entered in CHRIS within 24 hours of this determination.”
   9. What happens when IMU obtains a SIR from DBHDS and disagrees with the providers assessment of the situation?  Is the provided then penalized for not reporting?  Given citation for late reporting? 
   10. How are providers ensured that their decision will be honored by the IMU and that citations will not be given for late reporting?

5. “Emotional harm may be evidenced by documented changes in the individual’s behavior (i.e., becoming more withdrawn, avoidance of peer(s), or clinical documentation from a qualified professional)”
   11. How are providers supposed to measure “emotional harm”?  We work with youth who have trauma and other issues.  How are we to measure this in any demonstrable way?
   12. All of the things listed are things seen daily among youth in the program.  General mental health shows these behaviors. 
   13. This element should be removed.  Not because it is not important but because there is no demonstrable way to prove this occurred based on staff or program shortcomings.

First, I agree fully with the comments posted anonymously on 5/22/23, especially those about the twenty four hour time frame being unnecessarily burdensome. As the author suggests, frequently given the nature of the settings and shifts that this work requires, 24 hours does not allow for a thorough and accurate internal review prior to reporting. 

In addition, the data and the narrative explanation provided at this time do not support the need for the change.  Using my experience with challenging consumers as a guide, a more likely reason that a small percentage of the "peer on peer" events are being found to be neglect is because these incidents are not neglect. Using your own definitions, the large majority of these events are not due to faults or errors by caretakers or their processes, intended or otherwise. Providers who accept clients with histories of aggressive behaviors and acting out are to be commended and supported in their work. When providers have clients with those proclivities, we work with them to make better choices, of course, but when they do not it is not necessarily because they have been intentionally neglected or some important aspect of their care has been missed. The underlying assumption here is highly problematic, and could very well lead to providers choosing not to provide services to those most in need. 

In the Economic Review form it states that no direct cost will be associated with the change of reporting “peer to peer” as neglect. While that is vehemently not true, it continues to show the disconnect from DBHDS over reaching regulations and the day to day implications of those requirements.

In regards to this document alone, a larger agency will have a rate of peer to peer incidents will be higher due to sheer number of persons served. Then requiring an investigation behind the incidents will have a direct impact on agency due to more Quality Improvement staff will need to be hired to cover the work load.

Now, take into account the other regulations that are already being enforced, Quality Improvement departments are already reviewing an overwhelming amount of data regarding day to day occurrences of the individuals supported.

Lastly and compounding circumstances, is that individuals whom are exiting school or already receiving services have behavioral and/or medical concerns that are extensive. Thus, many individuals cannot be supported in the current models Virginia has laid out with the lack of funding for high supports medically or behaviorally. Providers receive the same response “well you should apply for customized rate” and if anyone at DBHDS knew how arduous the process is to receive denials over and over is for individual who overwhelmingly need additional supports, the system would be overhauled. Every second and penny is scrutinized when providers are just trying to keep doors open and pay staff a livable wage.

In a post COVID world, providers are trying to keep doors open and support communities where they are at, and providers cannot do that with continued regulations that smother the workforce and force the creation of new positions when agencies are already operating on a fiscal year deficit. As a solution, there should be a financial increase related to additional positions created to meet standards or instead of being totalitarian in thinking and regulations, should have a joint action or alliance to work through potential resolutions in a collaborative way. 

Defined Terms:  (comments in bold) 

“Allegation” is not a defined term; however, (please define allegation more clearly as complaint and allegation are being used interchangeably to meet internal review requirement.)

Please define the scope/definition of internal review requirement.

"Neglect" (neglect is defined differently per different entities i.e. MCO’s, social services, board of nursing, etc. this definition is more aligned with negligence/quality of care issue, rather than neglect). means failure by a person, program, or facility operated, licensed, or funded by the department, excluding those operated by the Department of Corrections, responsible for providing services to do so, including nourishment, treatment, care, goods, or services necessary to the health, safety, or welfare of an individual receiving care or treatment for mental illness, intellectual disability, or substance abuse. See § 37.2-100 of the Code of Virginia. Definition should include “directly impacts health/safety of individual” or “results or could result in significant harm to individual”. Medication errors should be included since this is how medication errors are categorized. Additional guidance is needed to clarify expectations around med errors reporting/investigation.

Quality of Care Incident: Any incident that calls into question the competence or professional conduct of a healthcare provider in the course of providing medical services and has adversely affected, or could adversely affect, the health or welfare of a member. These are incidents of a less critical nature than those defined as sentinel events.

Untoward event: unpredictable event that was not preventable.

“Peer-on-peer aggression” means a physical act, verbal threat, or demeaning expression (What does this mean? Please elaborate or clarify) by an individual against or to another individual that causes physical or emotional harm (how to determine this?) to that individual. Examples include hitting, kicking, scratching, and other threatening behavior. (Include non-physical examples that would lead to emotional harm)

Internal Review of Peer-on-Peer Aggression- comments/recommendations in bold 

All incidents that meet the definition of “peer-on-peer aggression” in the Human Rights Regulations are to be reviewed by the provider (include timeframe for this expectation, is it assumed it would be within 24 hours to determine if CHRIS reporting is required? Recommendation is 3 business days. If we determine it needs to be reported and further investigated, is that the date of discovery? If not, will provider be cited for late reporting? This is problematic). This (documented) internal review (provider’s standard processes) of incidents involving peer-on-peer aggression is expected to consider, at a minimum, whether provider staff followed internal policies and procedures, delivered supervision consistent with individual needs and the ISP, and acted to prevent individuals from being harmed while receiving services. In addition, the provider is expected to identify any programmatic issues that may have contributed to the opportunity for peer-on-peer aggression (e.g., policies, protocols, etc.). Upon completion of this internal review, providers are expected to implement any identified proactive measures that may reduce the number of peer-on-peer aggressions and lessen the possibility of neglect, resulting in a safer treatment environment overall. (See also 12VAC35-105-160 and 12VAC35-105-520 of the Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services [“Licensing Regulations” ] that specify various review and reporting requirements.) Please note that the internal review refers to the provider’s standard processes to review incidents to determine any further actions needed to identify and address potential harms to an individual and to reduce the likelihood of reoccurrence (move this to before the internal review for clarification that it is based on providers standard processes). This is separate from the formal (remove formal to be consistent with regulation language) investigation that would occur if the review raised suspicion of abuse or neglect.

Reporting Peer-on-Peer Aggression Potential Neglect- comments/recommendations in bold

In addition, providers shall also report incidents of peer-on-peer aggression that, upon review by the provider, meet at least one of the following criteria:

• An incident that clearly occurred because staff were not engaged in appropriate supervision (e.g., provider staff willfully ignored aggression of one peer to another, provider staff intervened but not in accordance with policy, provider staff failed to implement supervision or supports based on the specific needs identified in the ISP);This implies incident would be investigated prior to submitting to CHRIS or this information would not be known.

• Three or more incidents of peer-on-peer aggression involving the same peers within seven-day timeframe. (# of peers to include the victim or the aggressor?)This implies that there would be an internal tracking to determine if these thresholds/types of incidents were met.

Incidents of peer-on-peer aggression that are determined to be reportable after a review by the provider shall be entered in CHRIS within 24 hours of this determination. (Is determination the date of discovery versus the date of the incident? Is the date of investigation the date of the preliminary investigation to make the determination, or the date we determine further “formal” investigation is required?) These incidents should be coded under the category “Neglect Peer-on-Peer Aggression” and the description must indicate the reason for the report. For instance, when the report is concerning three or more incidents of peer-on-peer aggression within a seven-day timeframe, the provider must indicate this as the “description,” along with a brief account of the three incidents. When the complaint alleges involvement of a known provider staff person, the provider staff name (It is inappropriate to enter the name of a staff member alleged to be involved in an allegation of this or any type. Doing so has the potential to skew the focus of an investigation to look at that named staff member, instead of allowing all data to be gathered before a final determination is made. In addition, doing so further compounds the fears of staff members who are already concerned about any entry of their name into the CHRIS system.) must be entered in the description of the incident on the Accusation Tab in CHRIS. If the allegation indicates a possible programmatic failure, the provider should select “Other” and enter the provider’s name (e.g., ABC Residential) under the Accusation Tab in CHRIS. Reports of peer-on-peer aggression should be entered in CHRIS under the name of the individual who was the alleged victim of the aggression. If the aggression was mutual, a separate report must be entered for all individuals involved.

If at any time the provider has reason to suspect that an incident may be a crime, or is otherwise reportable to another entity, the provider shall report the incident to all appropriate authorities in addition to its reporting requirements to the department. Such instances may include the following:

• An incident between peers involving sexual assault, which is a form of violence and includes forced groping and rape;
• An incident involving unwanted sexual activity between minors (e.g., intercourse, kissing, touching of private areas); or
• An incident involving sexual intercourse or other sexual activity between adult peers in which at least one individual is deemed to lack capacity based on an existing assessment that indicated the individual was at risk of exploitation.
• Include other types of examples where other entities would be contacted such as physical assault, exploitation, etc.
• This could be a collaborative investigation with other entities, such as police, social services, etc. depending on the type of incident.

First, I want to note that anonymous comments under the name "peer" are probably made by dishonest mental health professionals posing as peers.  Unbelievable.  This shows how mental health consumers really need protection from these dishonest mental health professionals.

Second, vulnerable mental health consumers absolutely should have the right to safe mental health services.  I am an LGBT person who lives with severe mental illness and is dependent on mental health providers.  A few years ago, I left a much needed Intensive Outpatient Program (IOP) at my local CSB because I was scared of verbal or physical assault from the other rough-and-tumble participants who were court-ordered and bragged about fist-fighting during program.  I have been in tough environments and have been beat up before, so I'm not overly sensitive.  But, I've encountered great animosity when discussing LGBT issues at mental health groups dominated by heterosexual men.  I get blamed for bringing up LGBT issues, not the bigots who lash out at me.   I later met with the CSB human rights liason, and asked him whether CSB staff could blame LGBT clients for 'bringing violence upon ourselves' merely by discussing LGBT issues.  Of course, the CSB human rights liason told me that staff had total discretion to act however they wanted to, even to blame LGBT clients for the verbal and physical assaults perpetrated against us.

Third, shame on the mental health providers for opposing these very reasonable regulations to ensure our basic safety.  Apparently, these professionals believe that they have a right to a paycheck regardless of how incompetent or abusive they may be, and will oppose even the most basic protections for vulnerable mental health consumers.  And, regardless of regulatory enforcement, this regulatory language will also allow enforcement through civil litigation.  If mental health consumers are seriously injured due to the gross negligence of mental health professionals, who are only capable of collecting their paychecks, then we should be able to sue them for our damages.  Mental health funding is meant to provide quality, effective services to mental health consumers, not to provide charity payments for incompetent, abusive mental health professionals.  And, it is worth noting that there have been high profile cases of mental health professionals actually manipulating clients, especially intellectually disabled clients at group homes, into fighting each other for the staff's amusement.     

Patients do not come first in the mental health system. I’ve been to over eight hospitals and spent over 5 years hospitalized. Honestly most doctors don’t care. It’s all trial and error to them. As for behavioral technicians and nurses. They’re just waiting on their next paycheck. Peer on peer altercation, are their entertainment. Using the authority they have to psychologically harm, manipulate, and physically abuse patients or as you see us (Consumers)

As you can see at Central State Hospital. Where a patient was smothered to death by security and officers. While handcuffed and shackled. He was carried and thrown around as if he’s life did matter at all. That’s just a glimpse into the reality of a patients. Truth be told, I don’t think it possible for mankind to do right by there fellow man. If something doesn’t happen soon. It won’t be peer on peer or staff neglect. Medication will destroy the immune systems and reproductive system of the consumer. Let’s be real, there’s no such thing as a chemical off balance that causes major mental illness. There is no science backing it at all. Drug dealers on the streets can give you something to calm you down. The system is broken, built on lies. DBHDS, CSB, CIA, FBI, etc all the same for the most part. It’s time to be honest. 

We appreciate OHR’s efforts to reduce the administrative burden on providers, as well as the recognition that there is room to consider alternative approaches in the area of peer-on-peer aggression in light of the data presented regarding the low base rates of situations where these result in founded allegations of neglect. We further recognize and respect that it may be difficult to strike a balance when changing a long-standardized, yet nuanced, process.

First, we recommend the addition of several definitions and clarification of others.  Specifically:

“Allegation” – use this term uniformly throughout the guidance document, vs. using complaint and allegation interchangeably.

“Internal Review” – define, including information about scope and differentiation between internal review and investigation.

"Neglect" -  this definition should include “directly impacts health/safety of individual” or “results or could result in significant harm to individual”. We encourage efforts to align with definitions of neglect set forth by other entities with which providers interact, such as Adult Protective Services, Child Protective Services, the Department of Health Professions, and Managed Care Organizations. The current OHR definition is more aligned with concepts of negligence or quality of care than neglect.

“Peer-on-peer aggression” - elaborate/clarify ‘demeaning expression’. How is ‘emotional harm’ determined? Also include examples of non-physical harm that could lead to emotional harm. Often, results of events in this area result in harm based on accumulation and are evident much later. We recommend moving relevant information about physical and emotional harm from the second to last paragraph to the Defined Terms section.

“Provider” - means any person, entity, or organization offering services licensed, funded, or operated by the Department.

“Quality of Care Incident” -  any incident that calls into question the competence or professional conduct of a healthcare provider in the course of providing medical services and has adversely affected, or could adversely affect, the health or welfare of a member. These are incidents of a less critical nature than those defined as sentinel events. (This definition aligns with that used by multiple Managed Care Organizations.)

“Serious injury” - means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by anyone above RN (to be consistent with definition in the Licensing regulations).

“Untoward event” - unpredictable event that was not preventable.

We recommend a delineation of an Internal Review, particularly in light of previous education that such screenings were inappropriate. Operationalization of this might include specification of a timeframe allotted for this, (e.g., 3 business days), and delineation between obtaining clarifying information and engaging in investigative techniques, (e.g., conducting formal interviews with witnesses, obtaining witness statements, and review of policy and procedure documents). This may help prevent providers from conducting full, but brief, investigations and the resultant outcome of reporting only founded cases into the CHRIS system.

The Date of Discovery must be based on the date the Internal Review determines an allegation is indicated (vs. the event being an untoward event or quality of care incident) to ensure reports requiring entry into CHRIS are not flagged as late.

Consistent language distinguishing between an internal review and an investigation is necessary. Therefore, avoid use of the more confusing term “internal investigation.” In the context of this guidance document, it is understood that a situation warranting an investigation is one conducted by the provider (i.e., is internal). Similarly, change “substantiated complaints” to “substantiated violations”, so language is consistent.

It is inappropriate to enter the name of a staff member merely alleged (Accused) to be involved in a situation of this or any type into CHRIS. Doing so potentially skews the focus of an investigation to look only at that named staff member, instead of allowing all data to be gathered before a final determination is made. In addition, this compounds the fears of staff members, many of whom are already concerned about any entry of their name into the CHRIS system, inherently tainting the investigation process and staff member’s ability to trust that the person conducting the investigation is truly impartial.

In the section referencing incidents that may be a crime or require reporting to another entity, include:

• other types of examples where other entities would be contacted such as physical assault, exploitation, etc.
• that this might be a collaborative investigation with other entities, such as police, social services, etc. depending on the type of incident.

We are grateful for the efforts to clarify expectations regarding reporting responsibilities and hope additional, similar, data driven guidance regarding medication errors will be forthcoming.

I am writing to provide some feedback and request further clarification regarding the definitions outlined in the guidance document. Specifically, I would like to address the use of the term "allegation" and seek a clearer definition that distinguishes it from a complaint for the purpose of meeting the internal review requirements.

Currently, the document utilizes the term "allegation" without providing a specific definition. To ensure consistency and understanding, I kindly request that you define "allegation" more explicitly, differentiating it from a complaint. This distinction is crucial as both terms are being used interchangeably within the document. By establishing a clear definition, it will facilitate accurate interpretation and adherence to the internal review processes.

Furthermore, the definition of "neglect" provided in the guidance document appears to be aligned with negligence and quality of care issues rather than encompassing the broader definition that various entities, such as MCOs, social services, and boards of nursing, may adopt. In order to harmonize the understanding across different entities, I propose expanding the definition of neglect to acknowledge the variation in its interpretation. By acknowledging these variations, the guidance document can better accommodate the diverse perspectives and needs of the entities involved.

Additionally, it would be beneficial to explicitly state that neglect directly impacts the health and safety of an individual or results in, or has the potential to result in, significant harm to the individual. This clarification will ensure that the definition accurately reflects the severity and potential consequences associated with neglect.

Moreover, I suggest including medication errors within the definition of neglect. Medication errors are an important aspect of patient safety and are typically categorized under neglect in many contexts. By explicitly incorporating medication errors into the definition, the guidance document will effectively address this significant concern and promote comprehensive reporting and investigation procedures for such incidents.

To enhance clarity and ensure appropriate implementation, I kindly request additional guidance and clarification on the expectations surrounding medication error reporting and investigation. By providing specific instructions and procedures, the document can effectively guide entities in addressing medication errors, thereby safeguarding the health and well-being of individuals in care.

Additionally, I would also like to address the definitions of "Peer-on-peer aggression," "Physical or emotional harm," "Provider," and "Serious injury," in order to enhance their clarity and applicability.

1. Peer-on-peer aggression: The current definition of this term highlights physical acts, verbal threats, and demeaning expressions. However, to ensure a comprehensive understanding, I kindly request further elaboration or clarification on the various forms and manifestations of peer-on-peer aggression. Additionally, it would be helpful to provide guidance on how to determine whether an action constitutes physical or emotional harm. By expanding on these aspects, the definition can more accurately capture the range of behaviors that fall under peer-on-peer aggression, allowing for more effective identification and response to such incidents.

Furthermore, I suggest including examples of non-physical behaviors that can lead to emotional harm. This addition will help address instances where emotional harm occurs without a direct physical act, contributing to a more comprehensive understanding of the potential consequences of peer-on-peer aggression.

2. Provider: The existing definition states that a provider is any person, entity, or organization offering services licensed or funded by the department. However, I propose an expansion of the definition to also include providers that are operated by the department. This revision aligns with the definition provided in the Human Rights Regulations and ensures consistency across relevant documents and regulations.
3. Serious injury: The current definition indicates that a serious injury is one that requires medical attention by a licensed physician. However, I recommend expanding this definition to include medical attention by any healthcare professional above the level of a registered nurse (RN). By encompassing a broader range of healthcare professionals, the definition will better align with prevailing regulations and ensure consistency in reporting and assessing serious injuries.

I would also like to propose the inclusion of two additional definitions in the guidance document that will enhance clarity and understanding. These definitions, pertaining to "Quality of Care Incident" and "Untoward Event," are important to ensure accurate interpretation and application of the guidelines.

1. Quality of Care Incident: This term refers to any incident that raises concerns about the competence or professional conduct of a healthcare provider while delivering medical services. It encompasses situations that have adversely affected, or have the potential to adversely affect, the health or welfare of a member. It is important to note that incidents falling under this category are of a less critical nature compared to those defined as sentinel events. Including this definition will help differentiate between incidents of varying severity, providing a clearer understanding of the implications and necessary actions associated with each type.
2. Untoward Event: This term describes an unpredictable event that, by its nature, was not preventable. While the occurrence of such events cannot be foreseen or controlled, it is crucial to recognize their existence and acknowledge that they may have an impact on the overall care and well-being of individuals. By including this definition, the guidance document will emphasize the need to address and respond to untoward events appropriately, even if they were not preventable. This recognition is essential for promoting a proactive approach to handling unforeseen circumstances.

Incorporating these definitions into the guidance document will provide a comprehensive framework that covers a wider range of incidents and events within the context of healthcare provision. By clarifying the terminology and ensuring a common understanding, entities will be better equipped to navigate the guidelines and adhere to the recommended procedures.

Thank you for considering my feedback and suggestions. I believe that incorporating these clarifications and expansions will greatly enhance the effectiveness and applicability of the guidance document. Should you require any further information or assistance, please do not hesitate to reach out. I look forward to your response and continued collaboration.

I am writing to provide feedback and seek clarification regarding the guidance document's instructions on the internal review of incidents involving peer-on-peer aggression. Specifically, I would like to address the timeframe for conducting the review, the reporting requirements in case of late reporting, and the distinction between the internal review and formal investigation processes.

1. Timeframe for internal review: It would be helpful to specify the expected timeframe for conducting the internal review of incidents involving peer-on-peer aggression. Currently, the document does not mention a specific timeframe for completion. Considering the urgency of addressing such incidents, I recommend including a timeframe of no more than three business days from the date of discovery. This timeframe allows for a prompt evaluation of the incident to determine if CHRIS reporting is required and ensures timely resolution of any identified issues.

2. Reporting requirements and date of discovery: In cases where the internal review determines that an incident needs to be reported and further investigated, it is essential to clarify whether the reporting timeframe is based on the date of discovery. If the reporting is expected upon discovery, it would be beneficial to include guidelines or consequences for late reporting to ensure compliance with reporting obligations. This clarification will provide a clearer understanding of the expectations and promote prompt and accurate reporting.

3. Distinction between internal review and formal investigation: The document currently states that the internal review is separate from the formal investigation, but it refers to the internal review as a "formal" investigation. To align with the regulatory language, I recommend removing the term "formal" to eliminate any confusion. This revision will ensure consistency and clarity regarding the distinction between the internal review and the subsequent investigation process.

Furthermore, it would be beneficial to clarify that the internal review refers to the provider's standard processes to review incidents and determine any necessary actions to identify and address potential harm to an individual, as well as to reduce the likelihood of reoccurrence. By providing this clarification earlier in the document, it will enhance understanding and avoid any misinterpretation.

Lastly, I would like to address the section stating that the Office of Human Rights (OHR) may request provider information specific to the review of incidents involving peer-on-peer aggression. While it is essential to protect the rights of individuals receiving services, it would be helpful to provide more specific guidelines on the circumstances that may trigger such a request. This clarification will ensure transparency and facilitate cooperation between providers and the OHR.

Thank you for considering my feedback and suggestions. I believe that incorporating these clarifications and addressing the mentioned concerns will further enhance the effectiveness and clarity of the guidance document. Should you require any further information or assistance, please do not hesitate to reach out. I look forward to your response and continued collaboration.

I am writing to provide feedback and seek clarifications on the reporting and investigation procedures outlined in the guidance document for incidents of peer-on-peer aggression. Additionally, I would like to offer some recommendations to enhance the effectiveness and clarity of the document.

1. Reporting Criteria and Timelines: a) The document mentions incidents that meet certain criteria should be reported to the Office of Human Rights (OHR). However, it would be beneficial to clarify whether these incidents should undergo an internal review by the provider prior to reporting. If an internal review is required, it would be helpful to provide a timeframe for conducting this review, ensuring a prompt determination of reportable incidents. b) Regarding the reporting timeframe, it is essential to clarify whether the 24-hour deadline for entering incidents into CHRIS is based on the date of discovery or the date of the provider's determination that an incident is reportable. This clarification will ensure consistency and adherence to reporting obligations.

2. Description of Incidents and Staff Names: a) The guidance document suggests including the names of provider staff members in the description of an incident if they are alleged to be involved. However, I recommend refraining from entering the names of staff members in the CHRIS system at this stage. This approach will prevent potential bias and allow for a fair investigation, ensuring that all relevant data is gathered before making a final determination. Furthermore, it will address the concerns of staff members and alleviate any unnecessary anxiety they may experience.

3. Physical and Emotional Harm: a) The document defines physical harm as evidence of open wounds, bruises, black eyes, lacerations, or broken bones. However, it is important to also consider other forms of physical harm that may not manifest in visible injuries. I recommend expanding the definition to include a broader range of physical harm to encompass all possible manifestations of harm resulting from peer-on-peer aggression. b) In regard to emotional harm, the document mentions documented changes in an individual's behavior as evidence. To provide further clarity, it would be helpful to specify that clinical documentation from a qualified professional can also serve as evidence of emotional harm. This clarification will ensure a comprehensive understanding of emotional harm and facilitate accurate assessments during investigations.

4. Reporting to Other Authorities: a) The document mentions reporting incidents to appropriate authorities in certain cases, such as sexual assault or other reportable crimes. It would be beneficial to provide further examples of incidents that require reporting to other entities, such as physical assault or exploitation, to ensure comprehensive and consistent reporting practices. Additionally, clarifying the potential for collaborative investigations with external entities, such as the police or social services, will enhance the understanding of the reporting and investigation processes.

Thank you for considering my feedback and recommendations. I believe that incorporating these clarifications and revisions will enhance the accuracy, effectiveness, and clarity of the reporting and investigation procedures outlined in the guidance document. Should you require any further information or clarification, please do not hesitate to reach out. I look forward to your response and continued collaboration.

It is obvious that the use of the term "peer" is confusing as we now have a more robust contingent of "Peer Recovery Specialists" who in shorthand are called "peers!"

There are a couple areas that might need some better clarity:

• Providers have chosen (and as far as I know it has been successful) to not enter a staff name under the "accusations" tab and only use the staff name if the complaint is founded; you statement on page 4 says "must" and that should be replaced with the more generic "the data entry protocols should be identical to those used for any allegation of abuse or neglect"
• Also on page 4 (paragraph 2) please distinguish between investigations of incidents not reportable as abuse or neglect and those which may be.

June 20, 2023

Director Taneika Goldman

Office of Human Rights

Virginia’s Department of Behavioral Health and Developmental Services

1220 Bank Street

Jefferson Building, 4th Floor

Richmond, VA 23219-3645

Re:  dLCV’s Comment on the Proposed Guidance Document OHR 01

Dear Director Goldman:

On behalf of the disAbility Law Center of Virginia (“dLCV”), I would like to thank you for the opportunity to comment on Virginia’s Department of Behavioral Health and Developmental Services’ (“DBHDS”) Proposed Guidance Document, titled: “Reporting Peer-on-Peer Aggressions as Potential Neglect.” As the designated Protection and Advocacy System for the Commonwealth of Virginia, dLCV routinely works with people with disabilities receiving services in Virginia — both in the context of DBHDS-operated facilities and amongst DBHDS-funded and licensed providers in the community.

In light of our extensive work with DBHDS and, particularly, the Office of Human Rights, dLCV would like to bring several concerns to your attention. For the sake of clarity, dLCV’s comments on the Guidance Document are in the order as the issues appear in document.

1. dLCV’s Concerns and Recommendations

This guidance is intended to clarify the reporting requirements to the Office of Human Rights (OHR) for peer-on-peer aggressions that occur in licensed or DBHDS-funded community provider settings based on Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services [12VAC35-115] (“Human Rights Regulations”).

According to the excerpt above, the Guidance Document only applies to “licensed or DBHDS-funded community provider settings.” However, as referenced in 12VAC35-115, , cited above, the Human Rights Regulations apply to “Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.” In omitting providers “operated” by DBHDS and adding the qualifier of “community,” the Guidance Document narrows the application’s scope and unnecessarily creates confusion amongst providers and the public. We strongly recommend DBHDS explicitly include DBHDS-operated providers in this guidance.

“Allegation” is not a defined term; however,

While “Allegation” is not defined in the proposed guidance or in 12VAC35-115-30, it is our observation that failing to define this term has led to confusion among providers and clients about what constitutes an Allegation. In failing to provide appropriate guidance of what constitutes an “allegation,” DBHDS is further opening the door to arbitrary gatekeeping of when a CHRIS report of peer-on-peer aggression is actually filed by providers. As a result, there are likely to be incidents that do, in fact, constitute “neglect,” but are simply not reported by providers due to the lack of overall clarity in guidance. dLCV recommends an amendment to clarify what reasonably constitutes an “allegation” pursuant to the Human Rights Regulations in Virginia Administrative Code.

“Provider” means any person, entity, or organization offering services that is licensed or funded by the department.

In citing the defined term in 12VAC35-115-30, DBHDS incorrectly defines the term “provider.” Pursuant to code, a “provider” is “… any person, entity, or organization offering services that is licensed, funded, or operated by the department.” The omission of “operated” is unwarranted, limits the scope of the Guidance Document,  and creates unnecessary confusion.

In Fiscal Year 2022, licensed community providers reported a total of 8,708 complaints alleging neglect via CHRIS. Providers specifically coded 63% (5,542) of these complaints as alleged “Peer to Peer Neglect.” Of these “Peer to Peer Neglect” reports, less than 2% (121) were ultimately determined to be a violation of an individual’s right to be free from neglect while receiving services. The high volume of reports compared to the low number of substantiated neglect violations is an indication that the vast majority of peer-on-peer incidents of aggression are not the result of neglect.

Despite the fact that less than 2% of peer-to-peer neglect reports were found to be substantiated, it is not necessarily true “that the vast majority of peer-on-peer incidents of aggression are not the result of neglect.” We have seen many instances in which providers have ignored fact patterns that clearly support a finding of neglect, in order to make an “unsubstantiated” finding. While we understand that many of these reports do not indicate neglect, the idea that they do not deserve scrutiny is deeply concerning.

Incidents of peer-on-peer aggression that are determined to be reportable after a review by the provider shall be entered in CHRIS within 24 hours of this determination.

The Guidance Document fails to say precisely how long a provider has to make this “review” determination. As such, dLCV believes additional guidance is warranted in an effort to mitigate unreasonable delays in filing of these reports, which could potentially run counter to Virginia Administrative Code.

If at any time the provider has reason to suspect that an incident may be a crime, or is otherwise reportable to another entity, the provider shall report the incident to all appropriate authorities in addition to its reporting requirements to the department. Such instances may include the following:

• An incident between peers involving sexual assault, which is a form of violence and includes forced groping and rape;
• An incident involving unwanted sexual activity between minors (e.g., intercourse, kissing, touching of private areas); or
• An incident involving sexual intercourse or other sexual activity between adult peers in which at least one individual is deemed to lack capacity based on an existing assessment that indicated the individual was at risk of exploitation.

By saying what “may” constitute a reportable incident, DBHDS implies that all the specified examples are subject to a provider’s discretion of whether or not to report said incident. In fact, every example cited should be mandated reports.  The proper language should be “does include.”  Also, DBHDS should make clear that severely questionable incidents like those above do not need to be substantiated for a report to be filed in CHRIS.  We recommend adding the word “alleged” to the listed examples.

We also recommend adding a sentence to clarify that “this list is not exhaustive, as other incidents may meet the mentioned requirements, and, hence, a report should be filed in CHRIS.”

2. Conclusion

In light of dLCV’s aforementioned concerns, we believe additional revisions and updates are warranted for the sake of clarity regarding this Guidance Document. The current language is likely to confuse providers at best and, at worst, give providers an opportunity to fail to report clear instances of neglect. In addition to the specific language recommendations above, we recommend that DBHDS reinforce specific examples of what they are looking for, rather than broadly limiting reporting.  By clarifying expectations, we believe the reporting burden could be reduced while still allowing for the collection of important data.   

As always, please do not hesitate to reach out if dLCV can be of further assistance in clarifying our concerns and be of any assistance in ameliorating these concerns.

Sincerely,

Colleen Miller

Executive Director

SENT ELECTRONICALLY

(https://townhall.virginia.gov)

June 21, 2023

Ms. Taneika Goldman

Director, Office of Human Rights

Department of Behavioral Health and Developmental Services

1220 Bank Street – 4^th Floor

Richmond, VA 23219

            RE: Public Comment on Draft Guidance for Peer-on-Peer Aggression

Dear Ms. Goldman,

On behalf of the Virginia Hospital & Healthcare Association (VHHA) and its hospital and health system members across the Commonwealth, please accept these comments submitted in response to the notice of public comment on draft guidance for Peer-on-Peer Aggression.

CommentID: 217411